Category Archives: Judiciary

The common understanding of the landmark McCulloch v Maryland case is that it argued in favor of broad congressional “implied” powers. But, an important scholarly paper shows this standard narrative to be greatly exaggerated.

The common understanding of the famous Marbury v. Madison case is that it established the authority of the Supreme Court to determine what the Constitution says. From there, it’s held that the Court gets to determine the limitations placed on the federal government as well as the states. In short, the rest of the federal government, and the states, are bound by what the Supreme Court decides.

The plaintiffs in King v. Burwell claim the Patient Protection and Affordable Care Act only offers premium subsidies, as the statute says, “through an Exchange established by the State.” Members of Congress who voted for the PPACA – most recently Sen. Bob Casey (D-PA) and former Sen. Ben Nelson (D-NE) – now swear it was never their intent to condition Exchange subsidies on state cooperation.

In Government by Judiciary, Raoul Berger shows that even Chief Justice John Marshall never supported the liberal interpretation of the judiciary that those who believe in living constitutionalism attribute to him.

The supremacy of Supreme Court opinions in questions of constitutionality has evolved into an indisputable doctrine in the United States. Virtually nobody, particularly in the legal community, question the idea that the Court serves as the final decision maker when it comes to the Constitution. This view is nonsense.

On Monday, the Supreme Court declined to consider Hedges v. Obama, a constitutional claim challenging a law that could enable theindefinite military detention of US citizens—within the US—without trial, charge, or evidence of crime. The decision is remarkable, both for its implications for fundamental rights, and its reflection on judicial independence.